- (1.) THE appellants are aggrieved by the order dated 19.07.2012 passed by the Additional District Judge, Anooopgarh Camp, Gharsana District, Sri Ganganagar, whereby the learned Judge has dismissed the appellants' application under Order 39 Rules 1 & 2 read with Section 151 CPC.
(2.) THE brief facts of the case are that the appellants filed a suit for declaration of power of attorney and sale deed as null and void. Along with plaint, they also filed an application for temporary injunction. THEy claimed that agricultural land in Chak NO.16A Tehsil Anoopgarh in Square No.299/449, 301/449 and 300/49 measuring 24 bighas 6 biswas was alloted in 1974 in favour of their father, Shri Budh Ram. Ever since the allotment, their father and after him, the appellants have the possession of the said land. In 1999, the respondent, Dr. Surendra Yadav and Dr. Ramesh Yadav asked the appellants to vacate the land as they claimed that the land was allotted to them. According to the appellants, the respondent and other persons joined hands and prepared a forged power of attorney of their father in 1987, and got it registered. But the fact remains that their father had died in 1986 itself. It was further averred that on the basis of the said power of attorney, the respondent, Surendra Yadav, executed a sale deed on 27.04.1987 in favour of one Pema Ram. THEreafter, Pema Ram sold the land to one Harnek Singh. It was further averred that when the appellants came to know about the forged power of attorney, they filed a FIR. After completion of investigation, the police filed a charge-sheet. The defendant-respondent filed a reply to the application. They admitted that the land in question was allotted to Budh Ram. However, they claimed that Budh Ram died in 1987 and not in 1986. They submitted a death certificate dated 11.04.1988. According to them, prior to his death, Budh Ram had issued a power of attorney in favour of Surendra Yadav. It was further averred that the Pema Ram sold the said land to the defendants on 07.05.1996 and 17.06.1999 through a registered sale deed; they got the possession of the land in question. They claimed that the plaintiff have prepared a forged death certificate. The learned trial Court after hearing both the parties dismissed the application under Order 39 Rules 1 & 2 read with Section 151 CPC by order dated 19.07.2012. Hence, this appeal before this court. Mr. R.S. Choudhary, the learned counsel for the appellants, has vehemently contended that the learned Judge has considered the death certificate dated 11.04.1988 submitted by the police while submitting the negative final report in the criminal case instituted by the appellants against the respondent. However, according to the appellants, the appellants' father expired on 06.12.1986. This fact is borne out by the death certificate dated 28.03.2012. However, the learned Judge has failed to consider the death certificate dated 28.03.2012. The learned Judge has wrongly concluded that the appellant's father expired on 05.12.1987. Moreover, the anxiety of the appellants is that the respondent is likely to further alienate property thereby causing more legal complications. On the other hand, Mr. N.L. Joshi, the learned counsel for the respondent, has strenuously contended that after a thorough investigation, the police had located the death certificate dated 11.04.1988 which clearly shows the date of death of appellants' father as 05.12.1987. Secondly, the death certificate submitted by the appellant is a subsequent death certificate which is dated 28.03.2012. According to him, the said certificate is a fabricated one. Therefore, the learned Judge was certainly justified in accepting prima facie the authenticity of the death certificate dated 11.04.1988. Thirdly, according to the appellants, they were dispossessed from the land in 1989. Therefore, they were not in possession of the land in dispute. Most importantly, even in the revenue records names of the respondent and Pema Ram have already been entered. Therefore, the appellants did not have a strong prima facie case. Hence, the learned Judge was justified in rejecting the application under Order 39 Rules 1 & 2 read with Section 151 CPC. Heard the learned counsel for the parties, examined the impugned order. The learned trial court was faced with two contradictory death certificates, one dated 11.04.1988 and another dated 28.03.2012. While the former was produced by the police, the latter by the appellants. Considering the fact that the former was recovered by the police after a thorough investigation, prima faice, it reflects the actual date of death of appellants' father. According to the said certificate, the appellant's father expired on 05.12.1987. Hence, the learned Judge was justified in accepting the said certificate on a prima facie basis. Moreover, the learned Judge was justified in opining that the actual date of death of appellant's father is subject to evidence which would be led by both the parties. Thus, the learned Judge has not giving any firm judicial finding. The learned Judge has accepted the death certificate dated 11.04.1988 merely on "a prima facie" basis. The anxiety of the appellants that the respondent may further alienate the properly is misplaced. It is, indeed, trite to state that any further alienation would be subject to Section 52 of the Transfer of Property Act.
(3.) CONSIDERING the fact that the appellants are no longer in possession of the land in dispute, considering the fact that the names of the respondent and Perma Ram have already been entered in the revenue records, considering the fact that they have submitted a death certificate dated 28.03.2012 which is subject to evidence which would be led in the trial Court, the appellants neither have a strong prima facie case, nor balance of convenience, nor can they claim that irreparable loss would be caused to them in case the respondent were not stopped from alienating the property further. Therefore, in the opinion of this Court, the learned Judge is legally justified in dismissing the application under Order 39 Rules 1 & 2 read with Section 151 CPC. Hence, this Court does not find any illegality or perversity in the impugned order. This appeal being devoid of any merit; it is, hereby, dismissed.;